THE PROPOSED REVISION STATES:Clarification with Bidders Members of the BAC, including its staff and personnel, as well as its Secretariat and TWG, are prohibited from making or accepting any verbal communication with any bidder regarding the evaluation of their bids until the issuance of the Notice of Award. The procuring entity may ask in writing, at its discretion, the bidder for a clarification of its bid. All responses to requests for clarification shall be in writing. No change in the price or substance of the bid shall be sought, offered or permitted.

REMARK:Notice of Award happens AFTER the bidder has been found to be the LOWEST CALCULATED RESPONSIVE BIDDER, which of course is the result of the POST-QUALIFICATION. POST_QUAL for defense contracts require that the plants be visited, and documents verified. All these necessitate inter-action with the bidder concerned -- which if done ONLY in the written form may not be practical.

The provision on the prohibition on communication with bidders is specifically during Bid Evaluation (until Award of Contract), but it is not even absolute. As you correctly analyzed it, it would, in effect, cover the Post-Qualification stage, where the BAC needs to verify, validate and ascertain the documents and statements submitted. It would, of course, entail a lot of communication between the BAC/TWG and the LCB/HRB, which is not prohibited.

In other words, that provision is during bid evaluation. Under the proposed revision, it is now being cleared that despite the prohibition on communication during bid evaluation, an exception is allowed if the BAC needs to be clarified about the bidder's bid. Communication, however, is required to be in writing so that this would be part of the record of the BAC, just in case an MR, Protest, and/or a case in filed in court. During post-qualification, clarification need not be in writing, therefore.

Unfortunately, your explanation is NOT EVIDENT on the wordings of the proposed revision. It appears that absolutely ONLY written communications can and should transpire between the BAC and Supplier during Bid Evaluation. Notice however, that you may need to clarify that the provision does not consider POST-QUAL as part of bid evaluation -- which may be difficult as it is worded now.

May I suggest to GPPB that they re-study the wordings for this provision. For implementors, gray areas like these would leave them no recourse but try to interpret the provision. The varying interpretations i came across in the past did not result in a uniform implementation of the law -- something which the IRRs is meant to do.

RDV wrote:The provision on the prohibition on communication with bidders is specifically during Bid Evaluation (until Award of Contract), but it is not even absolute. As you correctly analyzed it, it would, in effect, cover the Post-Qualification stage, where the BAC needs to verify, validate and ascertain the documents and statements submitted. It would, of course, entail a lot of communication between the BAC/TWG and the LCB/HRB, which is not prohibited.

In other words, that provision is during bid evaluation. Under the proposed revision, it is now being cleared that despite the prohibition on communication during bid evaluation, an exception is allowed if the BAC needs to be clarified about the bidder's bid. Communication, however, is required to be in writing so that this would be part of the record of the BAC, just in case an MR, Protest, and/or a case in filed in court. During post-qualification, clarification need not be in writing, therefore.

DefCon:

I am quoting RDV's reply to dissect the issue. At 1st glance you may have analyzed Sec.32.3 of the revised IRR as an absolute statement. However, looking to its validity and its position from the entire IRR's perspective, you will see that the statement is simply under RULE IX - Bid Evaluation. Post-Qualification is defined in Rule X. There is no similar Section or Subsection in Rule X stating the same ruling. We can only conclude that as far as the IRR is concerned, "bid evaluation", even if qualified by the phrase "...up to the issuance of Notice of Award x x x" does not include (hence, exempted) post-qualification from the prohibition.

Thank you, engrjhez, for correctly clarifying that the particular provision is under Rule IX - Bid Evaluation of the IRR. There is no such requirement under Rule X - Post-Qualification, except under Section 34.4 where the BAC is required to notify in writing the bidder the with LCB/HRB, if he fails the criteria for post-qualification, of such post-disqualification plus the reason(s) for such disqualification.

Nice post! I did read this somewhere in 9184 but I didn't took it seriously. First, the prohibition, will preclude the effectiveness of the bidding process particularly in highly technical projects. We often require the presence of our bidders during the bid evaluation primarily for clarifying their technical quotations and inspecting the samples we required them to bring.

Does this mean, we are somehow violating 9184? What could be the reason behind for the prohibition? Any comment would be appreciated..

The presence of bidders is not required during bid evaluation. If you are inviting them during the evaluation process, you are violating the "no contact rule" which is what that particular provision is all about. You do not need the presence of bidders during the period of evaluation because their presence may only affect your judgment or influence and delay your evaluation process. Remember you are only given a maximum of seven (7) c.d. for that. Rule IX has enough rules you need to apply in your evaluation process, like in case of arithmetical errors, discrepancy, etc. If a bidder does not agree with the results of your evaluation, he/she can always file a motion for reconsideration, after being informed officially by the BAC of the results after a bidder has been declared an LCRB/HRRB.

The proposal to allow written clarification by the BAC specifically on the bid, to be answered in writing also, will be able to address some of your problems during the technical evaluation, subject to the condition that "no change in the price or substance of the bid shall be sought, offered or permitted."

As a suggestion, the proposed provision (Sec. 32.3) allowing for written clarification during bid evaluation for the procurement of goods and infrastructure projects need also to be integrated in Sec. 33.3.3, under the Detailed Evaluation Procedure for Consulting Services.

I am sorry to say that this is a very good example of the wrong focus of RA 9184 and its IRRs. Instead on focusing on HOW TO ACHIEVE AN EFFECTIVE AND EFFICIENT PROCUREMENT PROCEDURES, the current focus, sadly, is still on how to curb corrupt practices.

Suggest that we ask ourselves everytime we are proposing provisions on the IRR the question: "WILL THIS CONTRIBUTE TO A MORE EFFICIENT / EFFECTIVE PROCUREMENT PROCESS? rather than: "HOW CAN I ENSURE THAT THIS WILL NOT CONTRIBUTE TO CORRUPTION OF THE PROCESS?"

Everytime we propose more stringent measures, we are actually opening up opportunites for irregularities -- which we cannot anyway totally prevent. There will always be loopholes, and NO LAW CAN EVER BE PERFECT. Yet we still continually try, and in the process -- RESULTS TO A VERY COMPLEX, IMPRACTICAL, TEDIOUS PROCESS.

Guys, I am very sorry for the way I am reacting, but I just cannot help but feel very strongly against impractical provisions like these... SEVERAL MORE SIMILAR PROVISIONS CAN BE FOUND IN THE IRRS. And I thought we are supposed to simplify the process...

DefCon wrote:THE PROPOSED REVISION STATES:Clarification with Bidders Members of the BAC, including its staff and personnel, as well as its Secretariat and TWG, are prohibited from making or accepting any verbal communication with any bidder regarding the evaluation of their bids until the issuance of the Notice of Award. The procuring entity may ask in writing, at its discretion, the bidder for a clarification of its bid. All responses to requests for clarification shall be in writing. No change in the price or substance of the bid shall be sought, offered or permitted.

REMARK:Notice of Award happens AFTER the bidder has been found to be the LOWEST CALCULATED RESPONSIVE BIDDER, which of course is the result of the POST-QUALIFICATION. POST_QUAL for defense contracts require that the plants be visited, and documents verified. All these necessitate inter-action with the bidder concerned -- which if done ONLY in the written form may not be practical.

RECOMMENDATION: For your consideration.

Based on your post, and the foregoing answers, I don't see any reason why the clarification will lead to ...corruption. I agree that we must simplify. And no post were proposed to complicate the rules.

In the end, your recommendation was supposed to be clarified and even pre-approved by the IRR.

DefCon wrote:I am sorry to say that this is a very good example of the wrong focus of RA 9184 and its IRRs. Instead on focusing on HOW TO ACHIEVE AN EFFECTIVE AND EFFICIENT PROCUREMENT PROCEDURES, the current focus, sadly, is still on how to curb corrupt practices.

Suggest that we ask ourselves everytime we are proposing provisions on the IRR the question: "WILL THIS CONTRIBUTE TO A MORE EFFICIENT / EFFECTIVE PROCUREMENT PROCESS? rather than: "HOW CAN I ENSURE THAT THIS WILL NOT CONTRIBUTE TO CORRUPTION OF THE PROCESS?"

Everytime we propose more stringent measures, we are actually opening up opportunites for irregularities -- which we cannot anyway totally prevent. There will always be loopholes, and NO LAW CAN EVER BE PERFECT. Yet we still continually try, and in the process -- RESULTS TO A VERY COMPLEX, IMPRACTICAL, TEDIOUS PROCESS.

Guys, I am very sorry for the way I am reacting, but I just cannot help but feel very strongly against impractical provisions like these... SEVERAL MORE SIMILAR PROVISIONS CAN BE FOUND IN THE IRRS. And I thought we are supposed to simplify the process...

On the contrary, the prohibition on communication during bid evaluation will make the process more effective and efficient. If the bidders will be openly allowed to communicate with the BAC and vice-versa during bid evaluation, or worse be made present during bid evaluation, it will cause delay in the evaluation process. Curbing corruption could not even be the focus of the rule, although the individual bidders could invariably apply pressures on the BAC to advance their own individual interests.

The BAC should be made to do its work without being distracted by the bidders who could pester them, not necessarily influence them, in their evaluation process.

In the draft IRR, a window is being opened only for the BAC, to allow it to make a written request, during bid evaluation, to a bidder to clarify an item in its bid. As a safety measure, when the bidder clarifies, it cannot, however, propose to make changes in the price or substance of its bid.

Since the BAC is allowed to make written clarification, it makes the process more efficient and effective in the sense that an item or items in the bid has been clarified immediately which allows the BAC to decide correctly on some issues they made have in the process. The end result is that delays could be avoided, such as a bidder filing a motion for reconsideration and/or protest because he/she does not agree with the results of the evaluation process.

The suggestion to incorporate the proposed provision also in the detailed evaluation procedure for Consulting Services is only to make the process standard for all procurement activities.

Again, the prohibition on no communication does not apply to the post-qualification process.